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June 6, 2008

New Judge Gertner opinion asserts extended prison term would reduce public safety

It is fitting to follow news of a new record high US incarceration population with an interesting new opinion from federal District Judge Nancy Gertner, which contends that  an extended prison term may reduce public safety in some cases.   These thoughts are developed in US v. Haynes , No. 06cr10328-NG (D. Mass. June 3, 2008) (available for download below), and here is part of the introduction of the opinion:   

At the time of sentencing, Haynes had already served approximately thirteen months in pretrial detention, longer than the sentence he served for the 1998 conviction.  The recommended sentence under the United States Sentencing Guidelines Manual, 33-41 months, was driven exclusively by the quantity of drugs for which he was responsible (on those two occasions in May 2006), the location of the sales, and his criminal history (Criminal History Category II). The government argued that the lower end of the Guidelines, 33 months, was entirely appropriate, not just because the Guidelines recommended it, but because "public safety," one of the factors in 18 U.S.C. § 3553(a), demanded it.

I found otherwise. While public safety certainly calls for the incapacitation of some, there is another side to the equation, which, after United States v. Booker, 543 U.S. 220 (2005), may finally be given the serious consideration it deserves.  The facts presented by Haynes’ case force the Court to confront the inescapable fact that disadvantaged communities like Bromley-Heath are injured both by crime and by the subsequent mass incarceration of their young men.  See Donald Braman, Criminal Law and the Pursuit of Equality, 84 Tex. L. Rev. 2097, 2114-17 (2006). Compare Randall Kennedy, Race, Crime, and the Law 373-76 (1997), with Todd R. Clear, Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Neighborhoods Worse (2007).  Courts may no longer ignore the possibility that the mass incarceration of nonviolent drug offenders has disrupted families and communities and undermined their ability to self-regulate, without necessarily deterring the next generation of young men from committing the same crimes.

Haynes is an individual for whom continued incarceration beyond thirteen months makes no sense. Indeed, here, public safety seems to require the opposite of the government’s request; it requires that Haynes be permitted to return to his children so that they do not repeat his errors. Thus, I sentenced Haynes to time served: the thirteen months he had already served in pretrial detention plus a carefully considered supervised release program.

Download HaynesSentMem.pdf

June 6, 2008 at 03:51 PM | Permalink


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Tracked on Jun 7, 2008 5:52:38 AM


This is a bit much. I suppose the next step is for district judges to argue that incarceration itself reduces public safety because it costs money that could be better spent on other social programs, and on that basis sentence everyone to the statutory minimum (or no sentence at all if there's no minimum).

Is anyone aware of a Judge Gertner opinion that has sentenced someone above the Guidelines?

This would seem to be the by-product of Booker/Gall/Kimbrough discretion + appellate review for abuse of discretion: district judges can do whatever they want, so long as they're good writers and take the time to put their writing skills to use. Note that the defendant isn't getting time served plus supervised release, but rather a "the thirteen months he had already served in pretrial detention plus a carefully considered supervised release program."

If the supervised release program is "carefully considered," that what senseless First Circuit panel could possibly object?

Posted by: anonymous | Jun 6, 2008 6:02:00 PM

Since an extended prison term for one fellow reduces public safety, I suggest that we avoid such unwanted reductions on a larger scale by emptying the prisons right now.

Think of all the money we'd save! Health care! Schools! The environment! Better head shops for all!

Posted by: Bill Otis | Jun 6, 2008 7:03:44 PM

Judge Gertner makes good sense. We can all agree punishing too much is as much an injustice as punishing too little. Long live Judge Gertner!!

Posted by: Michael R. Levine | Jun 6, 2008 7:58:06 PM

Courts may no longer ignore the possibility that the mass incarceration of nonviolent drug offenders has disrupted families and communities....

They can, and they will. And they'll be reversed if they don't. By this logic courts should not even enforce our asinine drug laws, all of which create a black market and all the crime that goes along with it. Just like with alcohol prohibition, violent crime, gangs, gang wars, and dangerous adulterated substances are prevalent. Our society would be FAR safer without drug prohibition. Yes, even for the "hard" stuff like heroin and methamphetamine.

Unfortunately, 3553(a)'s reference to public safety means "safety from the defendant" and not "safety from the stupid laws congress passes."

Taken to the extreme (if not the absurd extreme), we'd be safer without enforcing any tax laws. No tax protesters, no tea parties.

Posted by: bruce | Jun 6, 2008 8:03:00 PM

This is the perverse nonsense we will see now that federal judges are unhinged from the guidelines and given a free hand to impose individualized "justice". The Sentencing Reform act of 1984 has effectively been gutted by Gall and Kimbrough.

Posted by: MJS | Jun 6, 2008 10:09:46 PM

Yes, MJS ... kinda like the Sentencing Reform Act of 1984 effectively gutted the Sixth Amendment.

Posted by: | Jun 6, 2008 10:30:51 PM

Never mind the fact that it was really the remedial Booker opinion that gutted the SRA, not Gall and Kimbrough.

Posted by: | Jun 6, 2008 10:33:05 PM

The SRA's gutting was 2 decades overdue.

Posted by: bruce | Jun 6, 2008 11:12:39 PM

This could be a good thing... but it is a prime example of the degree of discretion district judges now have.

The memorandum is a bit melodramatic and tendentious, but I'm not about to say that the sentence is unreasonable.

Posted by: anonymous | Jun 6, 2008 11:28:35 PM

While it is true that judges should be applying the law and that the law should be amended through the legislature, judges are also experts in the law and can see for themselves the consequences of prison terms. Who better to voice an opinion about the law than a judge? And often this is what is needed to sharpen public opinion - if the public disagrees with the judge and want to toughen sentences, so be it, but it's more likely that at the least it will cause more people to think about prison sentence lengths, which is an overall good.

Posted by: lawschoolinmate | Jun 7, 2008 9:57:06 AM

Practitioners know that Gall and Kimbrough and not Booker effectively gutted the guidelines as the latter decision neutralized meaningful appellate review.

Posted by: MJS | Jun 7, 2008 4:46:02 PM

MJS is right.

The best evidence that Gall and Kimbrough were necessary is the crack/powder cases preceding them. See Pho (CA1), Castillo (CA2), Ricks (CA3), Eura (CA4), Leatch (CA5), Miller (CA7), Spears (CA8), Williams (CA11)... all holding that district courts may not deviate from the Guidelines sentence on the basis of disagreement with the policy underlying the Guidelines at issue.

Perhaps those cases were all wrong, but they represented a near-unanimous consensus among the courts of appeals regarding how to apply Booker (against those were Gunter (CA3) and Pickett (CADC)), and those cases were "the law" in their respective circuits. Pho, in particular, is probably the best defense of the idea that after Booker, there are permissible and impermissible reasons for deviating from the Guidelines, and that "advisory Guidelines" meant that the District Courts had to more than merely crunch the numbers for the Guidelines before proceeding to impose whatever sentence they thought was appropriate.

Posted by: anonymous | Jun 7, 2008 6:26:24 PM

I'm a defense attorney.
Anyone who thinks that Booker, Gall and/or Kimbrough gutted the sentencing guidelines can't have been involved in too many sentencings over the last several years. While those cases give the district court judges lattitude to fashion appropriate sentences, my experience has been that judges impose guidelines sentences in the vast majority of cases. I saw a chart at a presentation last year that showed the average sentence length imposed in federal court, and my recollection is that it has continued to rise despite the "gutting" of the sentencing guidelines.
Since Booker and its progeny came along, I've had three downward variances (one variance was 2 months). This notion that district court judges are ignoring the guidelines is just plain wrong. Frankly, I think they're reluctant to impose sentences below the guidelines because they're afraid that Congress will take what little power they now have away from them.
Also, the prosecutors in my district are insisting on language in plea agreements which precludes defense attorneys from arguing for variances. Why they feel that it is necessary, given the paucity of variances is beyond me, but that is what they are doing.
As far as Judge Gertner's decision is concerned, those individuals who have made comments such as "[s]ince an extended prison term for one fellow reduces public safety, I suggest that we avoid such unwanted reductions on a larger scale by emptying the prisons right now" deliberately ignores the fact that the Judge has made an individualized determination that in this case incarcerating the defendant would not make us safer. I wish I was representing individuals who had the gumption to get EMT certifications and who saved other individual's lives while incarcerated.

Posted by: Defense Lawyer | Jun 9, 2008 12:32:52 PM

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